Point of Law: University of Kerala would not be justified in granting approval to the appointments granted by the 5th respondent when those appointments were clearly in violation to the provisions of law.

JUDGMENT :

1. Through this petition filed under Article 226 of the Constitution of India, the petitioner challenges Exhibit P8 notification issued by the Manager, Sree Narayana Colleges, a Corporate Educational Agency running various aided colleges and schools in the State of Kerala, calling for applications for appointment to the post of Assistant Professor in English. The challenge is raised primarily on the contention that the notification issued is in violation of the constitutional mandate and the benevolent provisions of the Rights of Persons with Disabilities Act, 2016 (Act 49 of 2016).

2. Short facts are as under:

(a) The petitioner is a Postgraduate in English and has acquired NET qualification. This fact would be evident from Exhibits P2 to P5 produced before this Court. The Standing Disability Assessment Board attached to the Taluk Head-Quarters Hospital, Chirayinkeezhu has examined her disability and they have concluded that the petitioner is suffering from Congenital Hemiparesis (locomotor disability) to the extent of 50%. The above fact is evident from Exhibit P1 Certificate.

(b) It is contended that the Government of Kerala recognising the mandate under Section 33 of the Persons With Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (Act 1 of 1996) that every Appropriate Government is required to appoint in every establishment, such percentage of vacancies not less than 3% for persons or class of persons with disability had initially come out with G.O. (P) No. 119/2005/SWD dated 06/08/2005, identifying 20 posts in class I and class II categories as suitable for appointment of physically handicapped persons in Government departments.

(c) Later, as per G.O. (P) No. 43/2009/SWD dated 13/10/2009, the Government has identified 48 posts in class I and II and 4 posts in class III categories as suitable for appointment of Persons with Disability (PwD) in Government Departments.

(d) Thereafter, Ext.P6 was issued on 17.10.2012, categorising the posts identified for the different divisions among the disabled for appointment in public service including the post of Assistant Professor in colleges. Serial No. 33 in the list pertains to the post of Lecturer in Arts and Commerce, which post has been identified to be allocated to the person suffering from locomotor disability/cerebral palsy/blindness, low vision, or hearing impairment. The petitioner contends that since she falls in the said category, she is entitled to be considered for appointment to the post of Assistant Professor in the Government as well as aided colleges.

(e) While so, the 5th respondent issued Exhibit P7 notification on 31.03.2018 calling for applications for appointment to the post of Assistant Professor in English to the aided institutions managed by the said corporate educational Agency. As per the said notification, applications were invited to fill up 58 posts of Assistant Professors in various subjects under the different aided colleges managed by the 5th respondent in Kerala University, Calicut University and Kannur University. Insofar as the colleges affiliated to Kerala University are concerned, 44 vacancies were notified in the aided colleges run by the 5th Respondent.

(f) The petitioner contends that Exhibit P8 notification is illegal and unsustainable under law as the same is issued to deprive persons falling in the disabled category from securing employment. The petitioner asserts that the 5th respondent, being a Corporate Educational Agency receiving aid from the Government, would come under the definition of establishment as defined under the Act and that they were bound to appoint not less than 4% of the total numbers of vacancies in the strength in each group of posts meant to be filled with persons with benchmark disabilities in view of Sections 33 and 34 of Act 49 of 2016. It is asserted that the omission to call for PwD candidates would be in egregious violation of the provisions of the Rights of Persons